The current immigration rules on when a refugee may be joined by family members — often referred to as refugee family reunion — are woefully outdated and simply do not reflect the nature of modern families. Reform is long overdue. But in the meantime, it is feasible to make successful applications for discretion to be exercised outside the rules. This blog post offers lawyers and advisors some tips on how to go about it.

The relevant part of the rules, Part 11, is limited to spouses or partners who have lived akin to spouses for two years, children and most recently adult children in exceptional circumstances (see para 352DB). These rules fail to recognise other meaningful familial relationships a refugee has. At the Greater Manchester Immigration Aid Unit (GMIAU) we are seeing more and more referrals, particularly from Afghan refugees. They are often desperate to sponsor siblings, parents and other relatives who are either internationally displaced or in very dangerous situations within Afghanistan. None of these relationships is currently covered by the rules, but it does not mean they cannot be made.

The first obstacle is funding. Without payment, it is impossible for lawyers or advice agencies to undertake the considerable work that will be needed. Given the complexity of these applications, it is very likely that Exceptional Case Funding (ECF) will be available from the Legal Aid Agency. In R (Gudanaviciene and Others) v The Director of Legal Aid Casework and The Lord Chancellor [2014] EWCA Civ 1622 (FM write up: Legal Aid and ‘exceptional’ case funding) an application made within the existing immigration rules application for family reunion and subsequent appeal were considered complex enough to attract the need for exceptional funding: see paragraph 172. The Public Law Project subsequently published a useful guide on how to obtain exceptional funding which I can highly recommend.

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Afghans also face a series of practical barriers they must somehow overcome when applying for entry clearance. For starters, there is no Visa Applicant Centre (VAC) in Afghanistan. Applicants are required to legally enter Iran or Pakistan. Applicants are required to produce identity documents to gain entry to a Visa Application Centre to enrol their biometrics (their photo and fingerprints). Travel in or out of Afghanistan may be too dangerous for some applicants either due to their profile or health. After the success of the cases of R (JZ) v Secretary of State for Foreign, Commonwealth and Development Affairs & Ors [2022] EWHC 771 (Admin) and R (SGW) v Secretary of State for the Home Department (Biometrics , family reunion policy) [2022] UKUT 15 (IAC) the Home Office has updated its guidance and is required to consider requests to waive its biometric enrolment policy where there are ‘exceptional individual circumstances’.

The next issue is to decide what application to make. The Home Office say that

“Applicants overseas must apply on the application form for the route which most closely matches their circumstances and pay the relevant fees and charges”

Given that there is no route available, this can become a problem. Be clear in your representations that, whilst your application is outside the rules, you believe you have applied under the closest rule based on the particular facts of the case and give reasons. We have heard of cases being rejected without consideration for failure to adhere to this rule. However, the Home Office’s own guidance states that:

 “Where an applicant does not meet the requirements of the Rules for entry clearance or leave to remain, caseworkers must, in every case, consider whether there are any exceptional circumstances or compassionate factors which may warrant a grant of leave outside the Immigration Rules.” [emphasis added]

Depending on your client’s circumstances they may need to pay the fee or apply for a fee waiver using this guidance. Free Movement also has a useful blog post on applying for fee waivers.

The key test to meet in these cases is whether there is family life. It is described in Kugathas v SSHD [2003] EWCA Civ 31 as a:

“real, committed or effective support between family members”.

A post by Free Movement looks at the case law in more detail. Usually this will require some form of dependence between the family member and sponsor such as financial and/or emotional support. Detailed, emotive witness statements, communication records, letters of support and also evidence of money transfers can help establish the test is met.

In the case of child sponsors wishing to reunite with their parent/s and siblings, it is essential to consider and cite the case of AT and another Article 8 ECHR-Child Refugee-Family Reunificiation) Eritrea [2016] UKUT 00227. It will be important to explain to the Home Office how the family were separated, the level of support the child has in the UK and evidence of how close the family remains. A supportive report by the child’s social worker on how reunification is in the child’s best interests will be key.

If there is any child involved in the application, their best interests are a primary consideration. Depending on the facts of the case, an assessment of their best interests by an independent social worker may be appropriate. The Entry Clearance Officer should be directed to the case of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC). Best interests arguments could be especially powerful where the child in question qualifies under family reunion rules but solely granting them entry clearance would mean separation from family members, such as grandparents, with whom they have always lived.

The Home Office’s family reunion guidance has a detailed section considering when leave should be granted due to exceptional circumstances or compelling factors. This is essential reading if you are helping with an application. For example, the relevant factors are said to include:

• The nature and extent of the family relationships involved
• The sponsor having severe mental or physical health conditions which can only be improved by the applicant joining them in the UK
• The applicant being in a conflict zone or dangerous situation.

Anyone assisting with these applications should engage with this section and present persuasive arguments as to why it should be applied in their client’s case.

The reader will know that the right to private and family life protected by Article 8 of the European Court of Human Rights is not an absolute right. Many refugees, especially those new to the UK, will be unable to show they can accommodate and support their family without use of public funds. However, it is always worth taking instructions and, if possible, providing evidence to show the family members will not be a burden on the state where appropriate.

The life of the applicant and Entry Clearance Officer may be worlds apart but, more likely than not, they have both experienced the joy of family and the fear of having it taken away. The evidence put forward needs to engage the decision maker, assist them to understand the gravity of their decision and empathise. Not so easy. Good luck!

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